STATE!.= OF CLALM: "Petitioner claims that he was (a) discharged without dust cause; (b) discharged in violation of the labor agreement; (c) discharged without being accorded due process in a fair, hearing; and (d) discharged without being provided full and fair representation by his collective ba


                        OPINION OF BOARD: At the inception of the matter here in dispute, Claimant

        Robert J. Butler had approximately fourteen (14) years of service and, was employed as a Track Foreman on the Harrisburg Division.


        On December 15s 1978 the Claimant was notified to attend a trial is connection with the charge of "being absent without premission on November 27,,

i December 14, 15j, 1978 (third offense)". Subsequent to a hearing on January 3,
        1979 the~Claimant was notified that he tins disciplined by "Dismissal in all

        Capacities" for the above alleged offenses. The discipline decision was

        appealed to the Managerj, Labor Relations. After an appeal hearing on

        January 31j, 1979, in.s letter dated February 5; 1979s Claimant's appeal was

        denied. ,Further appeal was made to the Senior Directory Labor Relations.

        Following a conference held on April 20,, 1979 the Senior Director denied ''_he

        Claimant's appeal in a letter dated April 27., 1979. In a letter dated

        September 10, '_?%?O, Claimant Butler served notice upon the Third Division

        advising of his intent to file as individual appeal.


        The Carrier maintains that the dismissal of Clai3aat was warranted and that the trial was fair and impartial. According to the testimony of Mr. R. E. Clark.. Track Supervisor, Claimant Butler was absent without permission on the three dates follows:


              "Q: Mr. Clarks Mr. Butler stated that on Friday, November 24 , 1978, he informed you he was ill and he would not be in to work on Moeday. November 27, 1978· 'could you please tell me what you know of this . incident?


              A: On Friday he told me he would be sick next week, that he would not be in and I said he was to make sure he called me before 7:C0 AM on

' Monday and tell me. I don't see how you can be sick on a Monday
              when you are not sick non.


                ?'hat's what I told him. I said 'you don't have my permission to te o=':'.

                  Award Number 23974 Page 2

                  Docket Number MS-23901


        "Q: Mr. Clark, did Mr. Butler state to you he was sick at that times Fridays November 24, 19787


    A: No.


        Q: Mr. Clark, on the 27th, did Mr. Butler request permission to be off?


    A: No.


        Q: Mr. Clarks did Mr. Butler make arrangements with you or request permission to be off on the 14th of December, 19787


    A: No.


        Q: Mr. Clark, did Mr. Butler arrange or request to be off on the 15th of December, 19787


    A: No."


The fattier stated that the Claimant does not deny his guilt of the charge. The Carrier maintains that in arriving at the discipline imposed, the 'Carriei applied the provisions set forth is the Unauthorized Absenteeism Agree-·., went of January 26, 1973 which~stat8s that employee who have been found guilty of three unauthorized absences from work within a twelve (12) month period are.subject to dismissal from service. In the instant case, Claimant Butler was first absent without permission on March 14, 1978. Claimant was serried written notice advising him that unauthorized absences from work would not be tolerated and would subject him to discipline. Claimant was again absent without permission on September 25, 28, 1978 and October 3, 1978. Claimant admitted his guilt and was subsequently disciplined by three (3) days suspension.

 The Claimant maintains that testimony by Mr. Clerk indicates that Mr. Butler's wife contacted Mr. Clark at 3:00 r''vt on December 14, 1978 to say that Mr. Butler would not be in December 14 or December 15 because he was going to Few York to attend a funeral. To get as excused absence the employe must call is prior to 7 December 15, 1978 cannot be considered an unexcused absence. Further, the December 14, 1978 absence was justified since the Claimant's efforts to give notice of the absence were reasonable under the circumstances and the rule requiring notice prior to 7:00 AM was 111-defined and unenforced. Claimant Butler asserted that he was informed by his Employer that substantial compliance rather than exact c Under the emergency circumstances, Claimant asserts _hat to was is substantial compliance.
                      _ Award Number 23974 Page 3

                      Docket Number MS-23901


          As regard to Butler's absence on November 27, 1978, Claimant .maintains that he notified his Sup leaving work and therefore might not be in Monday, November 27th. On the 27th Claimant was still suffering from the flu and did not report to work. The Employer had notice on the 24th that Butler was then ill and Butler testified, " I was sick and I told him".


          Claimant maintains that while he did not call is on the 27th, there were many instances where the Employer at Harrisburg, once notified of illness, does not require daily calls reaffirming the illness. Further, the Employer does not have uniform standards as to what constitutes an authorized or unauthorized absence, and the Claimant's Supervisor testified that the distinctions between the two rested solely with the Supervisor.


        An affadavit dated April 17, 1979 was executed by James Burton, a

        Conrail employe for 42 years. Burton swore that is the Spring of 1978,

        Air. Clark announced his firm resolve to obtain Butler's discharge and that

        Sutler has not done anything that any other employe hasn't done. Burton

        also score that Supervisor Clark had seat Claimant Butler home from work

        when he came in late while at the same time he did not send other employes

        . home for the same cause .. ..'. . .


    . . Claimant further maintains that he was not adequately represented

    at the hearing due to the incompetence of his union representative. Butler

    asserts that his union representative did not explore the issue that Super

    visor Clark had disciplined him for conduct that went unpunished when com

    mitted by others and ..hat his representative made no attempt to advance

    Butler's case or bring out facts in his favor.


          Under careful consideration of the record herein the Board finds that Claimant received a fair and impartial hearing. The charge was supported by substantial evidenc concludes that the discipline assessed was not premised on caprice or unreasonableness. The Board, therefore, denies the claim.


          FIT1D1_T1GS: The Third Division of the Adjustment Board., after giving the

          parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:


That the Carrier and the EFblFployes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Art, as approved ,:une 21, 1934; r r
                That this Division of the Adjustment Board has jurisdiction

IIIJ over the dispute involved herein; and

                That the Agreement was not violated.

            . \


                                                            w.


              . - Award Number 23974 Page 4

              Docket Numoer MS-23901 '


                          A W A R D


            Claim denied.


                                NATIONAL RAILROAD ADJUS24MT BOARD

                                By Order of Third Division


    ATTEST: Acting Executive Secretary

    National Railroad Adjustment Board


    BY

    Rosemarie Brasch - Administrative Assistant


. Dated at Chicago.,. Illiaois,, ,this 27th day.of-August 1982 .